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Tag Archive | "Legal Aid Agency"

Reforming the Advocates’ Graduated Fee Scheme

The Ministry of Justice (MoJ) has issued a consultation paper which sets out proposals for the reform of the Advocates’ Graduated Fee Scheme (AGFS). This scheme pays advocates to defend clients in the Crown Court. The current AGFS scheme was last subject to major change in 2007.

In his introduction to the consultation, Sir Oliver Heald QC MP, Minister of State for Courts and Justice, said: “Sir Brian Leveson has produced an outstanding blueprint for the modernisation of our criminal proceedings system. His reforms are already beginning to transform the criminal justice system to reflect the new reality that we face. It is vital that we update the way that we pay criminal defence advocates to reflect this reality too. Our current payment system does not focus enough on the skilled advocacy that barristers and solicitor advocates demonstrate in the Crown Court. I want to change that.”

According to the Government, the AGFS relies too heavily on Pages of Prosecution Evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are, and therefore how much a defence advocate should be paid. The current scheme also relies on the number of witnesses to help determine the fee to be paid.

The justice system is changing, and new forms of evidence are becoming critical features of many criminal cases. The counting of pages, and counting of new forms of electronic evidence, converted to “pages” is held to be no longer the most effective way of assessing how much work an advocate needs to do in an individual case, and therefore how much that advocate should be paid.

The proposed scheme claims to reduce reliance on counting pages, and instead would introduce a more sophisticated system of classifying offences, based on the typical amount of work required in each case. The time spent in court, conducting the advocacy upon which the justice system relies, would also become a more important driver for the fee paid. It is designed to be cost neutral, “with no intention to reduce or increase the overall cost envelope.”

While encouraging as many members as possible to respond to the proposals, the Law Society asserts that MoJ plans to impose cuts of up to £30 million on criminal defence solicitors. The proposed cuts come less than a month after the MoJ published proposals that will see QCs’ fees rise by 10% at the expense of other criminal advocates. The MoJ will reduce payments to advocates appointed by the court to cross-examine alleged victims of abuse from private rates to legal aid rates, and will make changes to the Litigators Graduated Fee Scheme (LGFS) which will slash payments for paper-heavy Crown Court cases. Criminal solicitors simply cannot afford to absorb any further cuts.

James Parry, chair of the Law Society’s Criminal Legal Aid Committee, said that these cuts are unnecessary and ill-timed, given the long term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem. As the Society will be working with the MoJ on this longer term project “it is unwise to impose short-term cuts on the scheme before that project has even started.”

“The Ministry has extensive independent evidence from consultants that demonstrates that solicitors’ businesses cannot afford to absorb further cuts, and there is a substantial risk that these cuts will drive a significant number of firms into insolvency,” said Parry.

“We recognise that the MoJ has concerns about the use of paper as a proxy for determining fees in the Crown Court,” he said. “With so much evidence now being video or data evidence, we have long shared those concerns. This is why we lobbied the Legal Aid Agency to start discussions about revisions to the LGFS to reflect the reality of Crown Court cases today. It is deeply disappointing that the MoJ is making ill-considered ad hoc changes to the scheme when those discussions are ongoing and making good progress.”

Parry concluded: “This is not a rational approach. The Government needs to tackle the problem at source. It cannot keep responding to every change in the criminal justice system by slashing the fees paid to lawyers.”

Posted in Criminal Justice, Legal Aid, UncategorizedComments (0)

New criminal justice advisory council

When the lord chancellor announced on 28 January that he would not press ahead with dual contracting for criminal legal aid he said: “I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system.”

The lord chancellor announced that he had “an ambitious programme of reform to our courts planned for the rest of this parliament. It is designed to make justice swifter and more certain. The reforms to our legal system, including taking more work out of courts, moving from a paper-based system to a digital platform, tackle unnecessary costs and reduce harmful delay, and these reforms will need the support of all in the legal profession.”

The new council is intended to be one of the mechanisms to assist him in understanding how these reforms could be effected.

The council’s full membership has not yet been announced, but its chair will be Gary Bell QC of No5 Chambers. Off to a flying start, Bell has invited anybody involved in the criminal justice system throughout England and Wales to contact him if they have matters they want the council to consider.

Writing for the Gazette online, Bell said: “The council will include a mix of barristers and solicitors as well as representatives from the Legal Aid Agency and the judiciary. Because it is very important that your views are reflected in as efficient and timely a way as possible it is essential that the membership of the panel reflects this need in its composition and location so as to be as efficient and focused as possible, but it is the views of individual professionals involved in the criminal justice system throughout the length and breadth of the jurisdiction that the panel would like to see.

“It is not a substitute for the Bar Council and the representative bodies who engage with the lord chancellor on a regular basis but an additional and important source of assistance.”

He goes on to write: “The council will not consist of members of representative bodies. It will be composed of individual barristers and solicitors in private practice who can express their own views without any external pressure brought to bear upon them. In that respect the council will be unique in that any findings and recommendations it makes will be those of the combined profession rather than representing the narrow interests of one branch or the other.”

He sees that the job of the council is to “consider all matters affecting efficiency, delay and waste within the system and make recommendations to the lord chancellor as to how best they can be eliminated. It will draw to the lord chancellor’s attention what it considers to be errors or abuses emanating from the system itself and any it encounters coming from the professions. In other words, it will be open and fair to all sides but also blunt and realistic.”

His article concludes: “The panel is not concerned with personalising criticisms, wherever they could legitimately be made in any part of the criminal justice system, but in addressing issues: using the people who really know – and that is you.”

Law Society president Jonathan Smithers said: “We would encourage our members to engage with this advisory council, as it is a good way to ensure that our concerns about inefficiencies in the criminal justice system are made known at the highest levels of government.”

Posted in Criminal JusticeComments (0)

LAA loses legal aid contract challenge

At a hearing in the High Court last week the Legal Aid Agency’s (LAA) decision not to allow a London firm, MK Law Solicitors, to join an additional duty solicitor scheme was quashed.

The case arose out of reforms sought to be brought into effect by the Lord Chancellor to the provision of criminal legal aid. A policy of two-tier contracting was proposed to be introduced whereby criminal legal aid solicitors would be able to provide services to their own clients under an “own client contract” and separately under a “duty contract.” Awarded by competition, the duty contracts gave firms of solicitors that were successful the right to be on the duty legal aid rota in 85 procurement areas around the country.

Duty contracts allowed a limited number of firms to represent new entrants to the criminal justice system. Some 1,600 firms secured own client contracts. The intention of duty contracts for duty provider work (DPW) was to offer some 527 DPW contracts with the objective of forcing consolidation in the criminal legal aid market. It was hoped that if fewer larger firms performed DPW that service could be provided at less cost to the LAA.

The process of introducing the new dual contracts scheme was controversial and the results of the tendering process were the subject of litigation. On 28 January 2016 the Lord Chancellor announced in a written statement to Parliament that the dual contracting model was not to be proceeded with. The LAA was to extend current contracts so as to ensure continuing service until replacement contracts came into force late in 2016.

MK Law Solicitors had won 10 duty provider contracts in London, including four in north London. After the new 2015 crime contracts were scrapped, MK Law Solicitors sought to join additional duty schemes in the London Borough of Hackney and surrounding areas until replacement contracts come into force.

The judgment, MK Law Solicitors v Lord Chancellor, states that admission to the additional duty scheme was contingent on successful firms meeting certain criteria set out by the agency. The claimant’s case was that it came within the criteria set out; it was successful in the duty provider contract, had opened an office in Hackney at 2 Underwood Row, and had employed supervisors and staff to deliver criminal legal aid at its Hackney office.

The LAA said the firm was not eligible to be included in any additional duty scheme because the firm’s north London office had been operational since 2012 but this was contested. Ruling that the agency erred in its application of the criteria, Mrs Justice Patterson DBE said it was ‘clear from the evidence’ that the north London office was set up to be able to provide advice to clients if required. There was no contractual requirement that an office had to be manned and open for walk-in trade.

Patterson accepted the firm’s submission that to impose such a requirement was both irrational and a breach of contract as it had no ability to deliver criminal legal aid services from Hackney until the new contract had commenced. The firm invested further time and money to establish a fully functioning office in anticipation of the original duty contract start date. The office became fully operational in December 2015.

Patterson’s conclusion was that the evidence was sufficient to lead to a quashing order of the decision of the LAA regarding MK Law Solicitors. The full text of the judgement is at :


Posted in Legal Aid, Legal Practice ManagementComments (0)

The need for a review of legal aid

The Legal Aid Act has denied justice to the most vulnerable and must be reviewed. The government is committed to a review after three years but there is mounting evidence that it should come sooner.

On people trafficking, when LASPO came into force, the Legal Aid Agency (LAA) didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case. The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

The legal aid cuts have added to the strain on divorcees. Evidence gathered by Citizens Advice shows that nine out of 10 people who have gone through the family courts, under new rules that heavily restrict access to legal aid, suffer strain in their mental and physical health, working lives and finances. The system is not set up to deal with “litigants in person” (LiPs). Of those who chose to be litigants in person, 90% reported a negative impact on their everyday lives.

Three years after the government scrapped legal aid across swaths of civil law, more ‘advice deserts’ are materialising in the sectors that remain in scope. A number of areas have no cover at all. The Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

The Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. The Law Society backed the challenge brought by the Public Law Project. Society president Jonathan Smithers said: “The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society. Survivors of domestic violence should not be subjected to the over-strict tests required by the regulations as they now stand.”

The Low Commission was established by the legal education charity Legal Action Group in 2012 in the wake of the legal aid cuts to develop a strategy for access to advice and legal support in social welfare law in England and Wales. It was set up to examine the impact of legal aid cuts and develop a strategy to help ensure access to justice. It is to be wound up because of a lack of funds.

When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid. He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years.”

He went on to say: “Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working.”

Corbyn will agree with the 22 signatories, including Chantal-Aimée Doerries QC Chair of the Bar Council and Jonathan Smithers President of the Law Society, to a recent letter in the ‘Guardian’. Short and to the point it said: “We believe the legal aid reforms have had a severe impact on the ability of vulnerable people to access justice since they came into effect on 1 April 2013. We agree with the justice select committee that the cuts have limited access to justice for some of those who need legal aid the most.”

It concluded: “The government has repeatedly said it will carry out a review to assess the full impact of the legal aid changes after three years. Today we call on ministers to fulfil this commitment at the earliest opportunity. We believe it is vital for government to ensure nobody is denied access to justice based on their ability to pay.”

Posted in Legal AidComments (0)

The impact of legal aid cuts

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean “litigants in person (LiPS) achieve worse outcomes compared with their represented counterparts.”

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Some lost their jobs due to the pressure, while others got into debt due to court issues, including paying for photocopying and travelling to and from court.

Meanwhile, seven in 10 reported they might ‘think twice’ about taking a case to court themselves if they could not afford a lawyer.

The charity said it was only after people had been through the process of going to the family court that they realised the value of having a lawyer, with 70% saying that instructing a professional would have benefited their court experience. The lack of professional support has also placed intolerable pressure on the court system.

Gillian Guy, chief executive of Citizens Advice, said: “For people representing themselves in the family courts, whether in a divorce case or to keep the legal right to see their children, the workload to prepare can be unmanageable. In extreme cases people are quitting their job so they have the time to do research before going to court.

“The stress of making your case against qualified barristers and navigating complex court processes without the right guidance can make existing mental and physical health problems worse.”

In January the lord chief justice, Lord Thomas of Cwmgiedd, delivered a warning about the legal aid situation in England and Wales. “Our system of justice has become unaffordable to most,” he said. “In consequence, there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Three years after the government scrapped legal aid across much of civil law, more ‘advice deserts’ are emerging in the sectors that remain in scope. Several parts of England and Wales now have inadequate housing law cover which could give rise to potential conflicts of interest. A number of areas have no cover at all.

According to the ‘Gazette’ the Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

From the usual spokesperson for the Legal Aid Agency we learn that the ’vast majority’ of England and Wales have access to LAA-funded housing advice. “We constantly monitor the situation across the country and we are actively seeking new providers in two areas,” the spokesperson said. “Legal aid is a vital part of our justice system but we must ensure it is sustainable and fair for those who need it, those who provide services and for the taxpayer, who pays for it.”

Posted in Civil Law, Civil Liberties, Legal AidComments (0)

Bill for abandoned legal aid contracts

The government admits to spending more than £400,000 on an abortive attempt to impose new criminal legal aid reforms. This was revealed in response to a request made by the Gazette to the Ministry of Justice under the Freedom of Information Act.

The Gazette sought a response to three queries. The first query asked “how much money the Ministry of Justice/Legal Aid Agency spent on the procurement process for 2015 duty provider crime contracts, from 27 November 2014 (when the procurement process opened) until 28 January 2016 (when justice secretary Michael Gove announced in a written ministerial statement that he would not go ahead with the introduction of the new dual contracting system)?”

The Legal Aid Agency’s information governance team said the procurement tender process was ‘one component’ of a ‘larger’ Legal Aid Transformation (LAT) programme, for which the agency has incurred a total of £5.5m in one-off implementation costs on the ‘entire’ programme since its inception.

The programme ran from 2013/14, covering initiatives such as reforms related to prison law, restrained assets, judicial review payments, civil fees, and crime fees and competition. The £5.5m figure includes three cost categories which the agency said can be ‘separately identified as directly related to the crime tender’. These are:

– External legal fees of £13,565, associated with drafting the criminal legal aid contracts, incurred between 27 November 2014 and 28 January 2016,

– Legal support on the procurement and assessment process, which the agency said was distinct from legal work, incurred a cost of £125,933.

– Agency staff incurred a cost of £271,574.

The Gazette’s second query asked how much the Ministry of Justice had spent defending the judicial review brought by the Fair Crime Contracts Alliance and around 100 claims issued by law firms in accordance with part 7 of the Civil Procedure Rule.

The LAA went to great lengths to detail the pros and cons of revealing such information, but concluded: “We reached the view that, on balance, the public interest is better served by withholding this information under Section 31(1)(c) and Section 43(2) of the Act at
this time….In this case, we believe that releasing the information would be likely to prejudice both the administration of justice as well as the Department’s commercial interests”

The Gazette’s third query asked “What does the Ministry of Justice/Legal Aid Agency plan to do with documents from the procurement process that show the marking by the assessors and moderators of all the applicant firms’ bids?”

The LAA responded that “No specific arrangements have been made concerning this documentation. Storage/disposal of documents will be in line with the LAA’s corporate retention policies.”

The quoted figure of just over £400k must be treated with suspicion. The cost of the aborted litigation that the LAA refuses to put a figure to must have been significant. And that’s not to mention the large number of LAA staff who worked full time on this project, the very expensive road shows, the strikes and disruptions of courts and other costs.

The pig-headedness of the unlamented former Lord Chancellor will undoubtedly have cost more than any hoped for savings.

Posted in Criminal Justice, Legal AidComments (0)

Any chance of compensation?

Following Michael Gove’s announcement that he was abandoning a new contracting regime for criminal legal aid, some criminal defence firms are considering whether to seek compensation from the government.

While welcoming the decision not to go ahead with the introduction of the dual contracting system, shadow justice minister Andy Slaughter told the House of Commons: “This has been an appalling use of taxpayers’ money. It has posed an existential threat to a fundamental part of our legal system, and it has caused uncertainty, failure and distress to thousands of hard-working small businesses throughout the country.” Read the full story

Posted in Criminal Justice, Legal AidComments (0)

Legal aid contracts: what now?

For the past couple of years the Legal Aid Agency has been fighting a fruitless battle with the legal profession over the legal aid contracts system. Right up to the last minute the Agency was stubbornly protesting that the legal actions that finally buried the contract nonsense would be stoutly pursued.

Then Michael Gove pulled the rug from underneath them, leaving the Agency to put out the following sad little statement:

Read the full story

Posted in Criminal Justice, Legal AidComments (0)

Legal aid contract challenges extended to May

At a hearing on 21 December 2015 it was decided that challenges to the government’s tender process for criminal legal aid will come to court towards the middle of next year. A judicial review, sought by the Fair Crime Contracts Alliance, will be heard in the divisional court by Lord Justice Laws and Sir Kenneth Parker.

More than 100 individual procurement law challenges, sought in accordance with part 7 of the Civil Procedure Rules, will be heard in the Technology and Construction Court by Parker. It was agreed that the judicial review will commence on 7 April and is expected to last seven days. A hearing for the part 7 claims will commence on 3 May and is expected to finish on 16 May. Read the full story

Posted in Criminal Justice, Legal AidComments (0)

High court gives green light to legal aid contract challenge

Litigation over the government’s award of new criminal legal aid contracts was never going to be straightforward. The lord chancellor made application for a possible group litigation order. Mr Justice Stuart-Smith did not grant the order but made specific rulings on how to proceed.

A group of 65 firms, including successful as well as unsuccessful bidders, came together under the title Fair Crime Contracts Alliance Ltd,. The Alliance sought an application for urgent consideration and expedition. The High Court was to consider whether to grant permission for judicial review of the government’s tender for new legal aid contracts amid questions about whether the parties have sufficient standing to bring proceedings.

On Monday the High Court granted permission for judicial review of the government’s tender for new legal aid contracts.

The Fair Crime Contracts Alliance, which represents law firms that bid for contracts, was granted permission subject to providing £40,000 security for costs. The lord chancellor will be permitted to apply for more costs after 11 January 2016.

Mr Justice Stuart-Smith said a second claimant, the London Borough of Newham, did not have sufficient standing to bring JR proceedings.

The High Court is also dealing with 115 procurement law challenges. But Mr Justice Stuart-Smith said there was ‘no doubt’ that the remedy being asked for in the judicial review was ‘wider’ and ‘more nuclear.’ The full hearing is likely to take place in January.

There are now three whistleblowers who have spoken out about the LAA’s highly controversial contract procurement process. The original whistleblower, Freddie Hurlston, a bid assessor and former LAA senior manager, went to the ‘Gazette’ to make public his concerns about the ‘botched’ tender process. The justice secretary dismissed Hurlston’s concerns as ‘merely one voice’.

Then Paul Staples came forward. He has been involved in over a dozen public procurement exercises in a range of sectors. He revealed that he had less than an hour’s training before he began assessing bids and received no training at all for his role as a moderator. “From day one I wasn’t happy with the process,” he said. “I was of the opinion that this was not a professional way of doing things. There were questions from the start.”

Now there is a third whistleblower. Jason Coppel QC, for the alliance, told the court: “This man wanted to help, he still wants to help, but he’s being threatened by the LAA with the consequences including, I understand, litigation if he gives a statement in the JR proceedings.”

Stuart-Smith told the court that, if a “properly detailed” complaint of “improper pressure” were to be placed before the court, “the court would be provided to rule on it.”

The Legal Aid Agency continues to say it would “robustly defend” any legal challenge.

Posted in Criminal Justice, Legal AidComments (0)

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